Friday, November 30, 2012

Over at the Legal Ethics Forum, Nicole Hyland has published a good short comment on the recent decision to revive the case challenging the rules that ban non lawyers from having ownership interests in law firms. You can read her comment here.

Is it unethical for an attorney to publicly disagree with a former client's interpretation of a decision issued in a case where the attorney represented the client?

In discussing a letter to the editor in the New York Times by famous attorney Floyd Abrams (available here), The Legal Ethics Forum offers some opinions on the issue. Go here for that discussion.

In her contribution to the discussion, Nicole Hyland explains that she does not think it is unethical as follows:

We owe a duty of confidentiality to former clients, but nothing Abrams wrote revealed confidential information. Whether we continue to owe a duty of loyalty is obviously much debated, but even if we do, I still don't see how this would violate the duty of loyalty. Attorneys have to be able to discuss legal precedent and give their interpretations of what cases mean - even their own cases. If your interpretation of the decision differs with your former client's, that can't be an ethical violation. A thornier question is whether the lawyer can later say that he disagrees with the outcome of a decision that was favorable to his former client (i.e. what if Abrams were arguing that Sullivan was wrongly decided and should be reversed?). That seems to go into the territory of a lawyer attacking his former work product.

Monday, November 26, 2012

Back in May of 2011, I wrote the "the next big thing" in Legal Ethics/Professional Responsibility was going to be the debate on whether non lawyers should be allowed to invest (or "own") law firms. See my original post (with links to more information) here. Since then, there have been lots of conferences, articles and a lot of discussion on the subject.

At that time, the issue came to the forefront because the law firm Jacoby & Meyers filed a lawsuit in New York challenging the state rules barring outsiders from
owning stakes in firms arguing the rules unconstitutionally restrict interstate
commerce. However, almost a year later, in March of this year, the lawsuit was dismissed. Go here for my post on that (again, with links to more information).

Now comes news that the debate can continue... In an order issued last week, the U.S. Circuit Court of
Appeals for the Second Circuit has ruled that Jacoby & Myers can amend its complaint to challenge all
provisions of New York law that bar non lawyer investment in law firms.
For more on the story, you can go to The ABA Journal, The New York Law Journal, Reuters, and the Wall Street Journal Law Blog.

Continuing our running list of examples on how not to practice law, here is a link to a brand new opinion from the Court of Appeals for the First Circuit in a case called Rodriguez-Machado v. Shinseki, (available here) in which the court (per curiam) says that "the plaintiff's briefs are textbook examples of how not to litigate a case on appeal." In support of this conclusion, the court explains that

...plaintiff's opening brief offers no specific record cites to support her version of the facts, which, again, she alleges are in dispute... Essentially, she is asking us to do one of two things: accept what she says as gospel or mine the record ourselves to confirm the truth of her story – and there is no reason for us to do either. ...Shockingly still, plaintiff's principal brief provides neither the necessary caselaw nor reasoned analysis to support her theories...

Later, the court adds that what the plaintiff has done "is not the type of serious effort that allows us to decide difficult questions ...and doing her work for her is not an option ..."

Given the bad quality of the appeal, the court decided to dismiss the appeal with prejudice.

The court makes clear that this is a drastic measure, but that it was within its discretion to take it. However, obviously, when the court refers to "the plaintiff" in all this, it is really referring to her lawyer. The drastic measure the court chose to take was really against the client. Was this really a case where the client should suffer the consequences of the ineptitude of her lawyer? Wouldn't it be more fair for the court to take action against the lawyer while giving the client a second chance?

UPDATE 11/26/12 (9:30pm): When I wrote my comment above, I was commenting on the court's opinion, not on the briefs the court criticizes. I have not read the briefs. However, over at Litigation and Trial, Max Kennerly has - and has posted a link to them so you can read them too. Having read them, he also questions the court's decision but for different reasons than me. He argues that, although the briefs do make a number of mistakes, it is a bit of an exaggeration to say, as the court does, that they are so bad they “cripple any attempt to review the issues intelligently.” You can read his full comment here.

Sunday, November 25, 2012

Otherwise is reporting that The New Jersey Supreme Court has invited public comment on a proposal to abolish “common law retaining lien.” The recommendation comes from the Court's Advisory Committee on Professional Ethics. The Advisory Committee found the lien to be obsolete and destructive of client relations. The Notice, Report and statement of the State Bar Association are available here. The Legal Ethics Forum adds a comment here.

Over at the Litigation and Trial blog, Max Kennerly has published two excellent comments on issues related to discovery and litigation management. In the first one (here), he concludes that "when courts forbid plaintiffs’ lawyers from sharing relevant discovery evidence amongst themselves,
they inadvertently enable the defendants to engage in discovery fraud
by cherry-picking which evidence they produce in each case." In the second article (here), he reviews a new
article by the federal judge (and the special masters he appointed) who
oversaw the 9/11 Responders litigation which reveals another critical
component of a successful and fair resolution of high-stakes litigation: judges need to make sure the cases move forward. Professional Responsibility: A Contemporary Approach also has a comment on the article here.

I have commented before on the practice of some judges of imposing unorthodox, unusual or "creative" punishment, in lieu of applying the law. (See here, where you will find links to more.) Some argue there is value in seeking forms of punishment that do not involve jail terms. After all, this country does have too many people in prison as it is. However, I think it is dangerous when judges feel they can do whatever they want.

The issue is again in the news following two recent cases. In one, a judge sentenced a woman to cook a Thanksgiving dinner for police officers (here). In another, the judge sentenced a minor to go to church for ten years (here). I find both episodes objectionable and disturbing. Professor Jonathan Turley has written about this subject many times in the past and his comment on these recent cases is available here. It reads, in part,

Forcing citizens to cook for police officers is another example of a
judge who panders to the public with sentences that seem “poetic
justice.” Judges know that this type of punishment is hugely popular
with the public. It is a trend that is erasing the line between
entertainment and the law. There has been a continuing and growing trend
of this type of abuse by judges. I have written columns (here and here and here) and blogs articles (here and here and here and here and here)
criticizing this worrisome trend, though the most serious such cases
involve judges like Norman who try to bring “more people to Jesus” while
carrying out his duties as a judicial officer. These judges make a
mockery out of our court system and sit like little Caesars in meting
out their own idiosyncratic forms of justice — often to the thrill of
citizens.

The case of the judge sentencing a defendant to go to church is discussed in this NY Times article.

Sunday, November 18, 2012

Last week in class we discussed the ethical issues related to perjury, including the duty not to use evidence the lawyer knows is false and the duty to take remedial measures if a client has introduced material false evidence. As part of the discussion, I usually tell my students that prosecutions for perjury are not very common, even though we have seen some high profile ones in the last few years (Barry Bonds and Roger Clemens, for example). Now, intent in proving me wrong, apparently, Prof. Janathan Turley is reporting on a case in which a prospective juror pleaded guilty and was sentenced to two years in jail after he was forced to admit that he lied to the court in denying that he had any relationship with any of the parties in the case. The juror actually knew two of the defendants and also had prior contact with the alleged victim. There is really no ethics or professional responsibility angle on the case, but it is an example of a court taking the issue seriously (by both enforcing the law and by impossing a significant penalty).

As President Obama prepares for his second term in the White House, should he put an end to military commissions, used to prosecute captured enemies for war crimes, and finally close Guantánamo? In the New York Times page Room for Debate five scholars discuss the arguments for and against. Click on the title of each individual debater's piece to read their full argument.

The Legal Profession blog is reporting on an interesting case in which the West Virginia Supreme Court of Appeals imposed sanctions on an attorney for what some members of the court thought was merely a single act of negligence. The case is called Lawyer Disciplinary Board v. Burke and it is available here.

The case is interesting because it raises the question of whether minor transgressions should subject lawyers to discipline. Or, in other words, the question of at what point does a particular misconduct is "bad enough" to warrant discipline. The majority opinion rejected the
lawyer's argument that, even tough negligent, his conduct did not rise to an ethics violation, while, in a dissenting opinion, Chief Justice Ketchum argued that "nothing [the] lawyer...did came
close to being an ethical violation" and that a single act of negligence should not be considered to violate ethical standards.

In fact, the Chief Justice opinion could be interpreted to say that there should not be discipline for any act of negligence:

The problem with the majority’s opinion is that it fails to define disciplinable incompetence with any clarity so as to allow for predictability. Single lawyer slipups are generally not ethical violations. They may expose the lawyer to professional negligence liability, but it has nothing to do with the lawyer’s ethics. Discipline should only be imposed when the lawyer’s error is intentional, reckless, repeated, or accompanied by some other misconduct like concealment.

What the Chief Justice is saying that a single incident of incompetence would justify discipline only if it was intentional. But, if it was intentional, then it wouldn't be negligent, would it? And, he also says if it was "repeated," in which case it would not be a single incident...

I don't necessarily disagree that a single instance of negligent conduct, depending on the circumstances, does not need to result in discipline, but this general assertion by the Chief Justice seems to be too broad. Discipline can not be limited to instances of intentional conduct. The very notion of incompetence is based on the fact that an attorney may violate a rule of conduct without intent. Limiting the disciplinary system to the regulation of intentional conduct is not supported by the current regulatory approach and would be wrong and dangerous.

As is well known, in Brady v. Maryland, the Supreme Court held that prosecutors have a duty to disclose exculpatory evidence to criminal defendants. Failure to disclose such information would constitute a violation of the defendant’s right to due process under the Fourteenth Amendment. However, courts are unclear on whether the Fourteenth Amendment right to the disclosure of exculpatory evidence also extends to pretrial detainees. As discussed in Circuit Splits, the
Eighth Circuit recently touched on the disagreement among the circuits over this issue
in a case called Livers v. Schenck. Go here to see the full post by Circuit Splits.

One of the, if not the, hottest topic in Professional Responsibility today is whether non-lawyers should be allowed to invest, fund or essentially "own" law firms. Currently, the prevailing view in the US is that it would be a bad idea, while the opposite seems to be the view in the UK. Here is a link to a short discussion the subject. Make sure you read the comments below the main post.

Wednesday, November 14, 2012

About a month ago, the Washington Supreme Court issued an interesting opinion holding that a prosecutor engaged in prejudicial misconduct requiring a
new trial when he used a PowerPoint slide show during closing argument
that featured highly inflammatory photos captioned with his own
commentary and opinion, including several slides of the defendant with
the word “guilty”
superimposed across his face. The case is called In re Glasmann. Writing for the 5-4 majority, Chief Justice
Barbara A. Madsen labeled the prosecutor's misconduct “flagrant and ill
intentioned”
and concluded that it so permeated the state's closing and tainted the
case that the error could not have been cured by an instruction to the
jury.

Monday, November 5, 2012

The New York Personal Injury Law blog has a good short comment on the duties of an attorney hired by an insurance company to represent one of several insured parties involved in a medical malpractice claim. The case scenario discussed in the comment is not uncommon. The plaintiff sued two physicians (an "attending" and a "resident") for injuries during a procedure but it is not clear which one of them actually caused the injury. They both want to claim it was the other, but their actions are covered by one same insurance policy. The insurance company assigns the case to two separate attorneys to represent each individual defendant separately. Also, and again not unusual, the insurance company retains the right to agree to the terms of any settlement. What happens when the insurance company wants to agree to a settlement that includes placing the blame on only one of the doctors? How can it determine which one to blame and what are the rights of that doctor in the negotiating process? What happens if the insurance company does not invite the attorney for one of the doctors to participate in the negotiation of a settlement? These are some of the issues discussed. You can read the comment here.

I think the comment is correct in the end - the bottom line being that the attorney assigned to represent the insured has a duty to demand to be part of all negotiations and a duty to defend the client's interests even if they are contrary to those of the insurance company. The comment argues that even if the client does not have a financial interest at issue in the negotiation of the settlement, there are other interests at stake that require that he or she be represented fully.

I agree with the bottom line. However, I think the comment is not entirely accurate in one small point. It starts from the premise that the resident does not have a financial interest in the settlement negotiations "because the hospital has vicarious liability for its resident." In other words, according to the premise, the insurance company justifies not inviting the attorney for the resident doctor to participate in the settlement process because the resident does not have to contribute to the settlement from her own funds," or because he or she "has no out-of-pocket responsibility to pay any part of the settlement amount."

It is true the resident doctor has no responsibility to contribute to the settlement amount, but that does not mean that he or she does not have a financial interest at stake. The fact that there is vicarious liability allows the plaintiff to recover the full amount of compensation from the employer but it does not relieve the actor/tortfeasor from his or her liability to the employer. The employer has the right to be indemnified in full. The fact that employers rarely, if ever, decide to exercise that right does not mean the right does not exist.

Thus, unless the employer has agreed beforehand to waive the right to indemnity, the resident does have a duty to repay the employer for what the employer pays in the settlement. And, for this reason, I would say that the resident can clearly argue that he or she does have a financial interest in participating in the negotiation.

In other words, I agree there is duty on the attorney to represent the interests of the insured in the negotiation but that duty is based not only on the insured's personal interests but also on his or her financial interests at stake.

The question of whether in-house counsel have a right to sue a former employer/client for wrongful termination is one that continues to generate opinions around the country. In class, for example, we discuss the (in)famous Balla v Gambro decision in which the court denies lawyers the right to sue
for wrongful termination when they are fired for acting according to
professional conduct obligations.

Other jurisdictions have taken different approaches, and just a few days ago, the D.C. Bar Legal Ethics Committee issued a new opinion in which it concludes that in-house lawyers suing their employers or clients for discrimination or a
retaliatory firing can't disclose any confidences or secrets, unless
they're defending against a counterclaim or affirmative defense. The Blog of the Legal Times has more information here.

As you probably remember, back in 2010, the Supreme Court decided Connick v. Thompson,
which has been described as "one of the most bitterly divided opinions
of the Court in a criminal case in recent years," absolving the New
Orleans District Attorney's office (under DA Harry Connick, Sr.) of complaints that it had
failed to train prosecutors about their duty to disclose exculpatory
evidence. (If you type "Connick" on the "search this blog"
box on the right side panel (under my name), you will find a long list of
entries with a lot of information about that case.) Adding to that wealth of information and materials, here is a very short but informative video on the case.

Friday, November 2, 2012

After a two-day delay because of storm Sandy, the Supreme Court heard oral arguments in Chaidez v. United States, which raises the issue of the retroactive application of Padilla v. Kentucky (2010) in which the Court held that a Sixth Amendment ineffective assistance of counsel claim could be based on a defense counsel’s failure to inform his client of the possible immigration consequences of a plea agreement. Kevin Johnson, a well known professor and scholar in the area of immigration law has posted a brief comment on the oral argument here.